Another controversial decision

The second Amendment to the Pakistani Constitution of 1973 was the last nail in the coffin of Muhammad Ali Jinnah’s Pakistan. The whole Anti-Ahmadi movement in the subcontinent has its genesis in Congress’ backing of Majlis-e-Ahrar-e-Islam which used the anti-Ahmadi slogans to attempt to draw a wedge in the Muslim League which had in its ranks not all kinds of Muslims from Ismailis to Shias to Ahmadis. Though there were some in the Muslim League who were willing to play ball, Jinnah refused point blank to give into such blackmail by Congress backed religious parties. On May 23, 1944, he said, “A vexed question was put to me, ‘Among Muslims who can become a member of Muslim Conference?’ and this question was particularly in reference to Qadianis. My answer was that so far as the constitution of the All- India Muslim League was concerned, it is laid down there that any Muslim, irrespective of his creed or sect, if he wishes to join the All- India Muslim League, he can do so, provided he accepts the creed, policy and programme of the All-India Muslim League and signs the form of membership and pays his subscription of two annas. I would appeal to Muslims of Jammu and Kashmir not to raise any sectarian issues, but to organise the Musalmans and bring them on one platform and under one flag.” (Jamiluddin Ahmad (ed.); Vol. I; p. 148).

Earlier on May 4, 1944,the newspaper founded by Jinnah, Dawn,had reported this: “Mr M A Jinnah was pleased to assure him that according to the latest constitution of the All India Muslim League there was no bar to the members of the Ahmadiyya Community joining the Muslim League and that as members of the Muslim League they would be entitled to such privileges as are enjoyed by members of other various sects of Muslims.” This can be verified from Dawn archives and this was also reprinted in Dawn as part of ‘past pages’ series on May 4, 2014. To argue Pakistan’s case before the boundary commission, Jinnah chose Sir Zafrullah Khan who did a masterly job by all accounts. Then Zafrullah Khan was chosen by Jinnah to represent Pakistan at the UN. Later Jinnah wrote to M A H Ispahani that Zafrullah Khan was needed urgently as there was no more a capable person than him in Pakistan. Zafrullah Khan returned to Pakistan and became the country’s first foreign minister and in this post, the services he did to Pakistan are undeniable. The only reason why Pakistan has a case on Kashmir today is because of Zafrullah Khan. Zafrullah Khan’s Ahmadi creed did not come in the way then but today the Islamabad High Court would not want a man like him hold a ‘sensitive office’ in Pakistan. Jinnah’s position on the Ahmadi issue was unequivocal. Ahmadis were to be considered Muslims because they professed to be Muslims. Theological disagreement was not enough to take away an entire community’s right to self identify.

Ahmadis are citizens of Pakistan and in theory, if not in practice, all citizens of Pakistan are equal before law. Similarly, no ban or bar can be placed on them from holding offices of the state other than those specifically reserved for Muslims

Yet forces of reaction – ironically the same forces that had supported Congress and called Jinnah Kafir-e-Azam- prevailed in 1974 finally and got Ahmadis declared Non-Muslims. Yet even if we were to accept this travesty of constitutional law as a valid amendment (which I as a constitutional scholar do not), Ahmadis are citizens of Pakistan and in theory, if not in practice, all citizens of Pakistan are equal before law. Similarly, no ban or bar can be placed on them from holding offices of the state other than those specifically reserved for Muslims which are the President, Prime Minister and the Federal Shariat Court. Other than that, every minority whether Ahmadi, Christian, Hindu or any other faith or indeed without any faith can hold other offices. To do so or to legislate on this would be utterly and totally unconstitutional.

Justice Siddiqui’s short order on the Elections Act of 2017has referred to the Article 5 (loyalty to the state). I submit that the judgement itself is in violation of Article 5, since it gives the impression of bias and partiality against a specific community. The oath of office taken by all judicial officers requires them to decide matters impartially,and purely on the basis of law and constitution.

It is time that the Supreme Judicial Council should look into the matter seriously.The council should take requisite action over conduct unbecoming of a judicial officer and for attempts to provoke hatred and violence against Ahmadis in Pakistan,akin to what happened to Jews in Nazi Germany.

The writer is a practising lawyer and a Visiting Fellow at Harvard Law School in Cambridge MA, USA. He blogs at http://globallegalforum.blogspot.com and his twitter handle is @therealylh